United States District Court, W.D. Pennsylvania
DALE KAYMARK, Individually and on behalf of other similarly situated current and former homeowners in Pennsylvania Plaintiff,
UDREN LAW OFFICES, P.C., Defendant.
Bissoon United States District Judge.
case was referred to United States Magistrate Judge Cynthia
Reed Eddy for pretrial proceedings in accordance with the
Magistrates Act, 28 U.S.C. §§ 636(b)(1)(A) and (B),
and Local Rule of Civil Procedure 72.
March 3, 2017, Plaintiff Dale Kaymark
(“Plaintiff”) filed a motion to strike a Rule 68
Offer of Judgment made by Defendant Udren Law Offices, P.C.
(“Defendant”). (Doc. 105). On March 10, 2017, the
Magistrate Judge issued a Memorandum Order denying
Plaintiff's Motion. (Doc. 111). On March 17, 2017,
Plaintiff filed a motion for reconsideration. (Doc. 112). On
March 22, 2017, the Magistrate Judge denied Plaintiff's
motion for reconsideration. (Doc. 116). On March 24, 2017,
Defendant filed Objections to the Magistrate Judge's
March 10, 2017 and March 22, 2017 Orders. (Docs. 117 and
118). Specifically, Plaintiff raises two objections to the
Magistrate Judge's Orders, which this Court will address
Objection No. 1
Plaintiff objects that “the Magistrate Judge erred in
declining to strike Udran's Pre-certification Offer of
Judgment.” (Doc. 118 at 2). Plaintiff argues that
“there is no authority for accepting or authorizing a
Rule 68 offer of judgment tendered to a putative class at the
pre- certification stage.” (Doc. 118 at 1). Contrary to
Plaintiff's argument, however, several courts, including
courts within our Circuit, have stated that an offer of
judgment tendered to the entire putative class, and not just
to the individual named plaintiff, is enforceable and
resolves any apparent conflict between Rule 23 and Rule 68.
See Ackerman v. Am. Greetings Corp., No. CV 15-1656,
2015 WL 9581751, at *4 (D.N.J. Dec. 30, 2015) (“In the
pre-certification stage, the Court must understand the proper
offeree for the purpose of offers of judgment to be the
putative class itself, not merely the named
plaintiff.”); McDowall v. Cogan, 216 F.R.D.
46, 51 (E.D.N.Y. 2003) (“[I]f a defendant wishes to
make an offer of judgment prior to class certification in the
interests of effecting a reasonable settlement and avoiding
the costs and inefficiencies of litigation, it must do so to
the putative class and not to the named plaintiff alone. . .
. This resolution allows the court to avoid the potential
friction between Rule 68 and Rule 23.”); Jacobson
v. Persolve, LLC, No. 14-CV-00735-LHK, 2014 WL 4090809,
at *5 (N.D. Cal. Aug. 19, 2014) (noting that “a Rule 68
offer of judgment made only to the class representative
rather than the class as a whole can pit the
individual's self-interest in accepting the settlement
against the interests of the putative class in obtaining
relief) (emphasis added).
also contends that “the offer of judgment in this case
contravenes Rule 23 and applicable case law, ” citing
to cases that “illustrate the general principle that an
offer of judgment can be stricken.” (Doc. 118 at 1, 4)
(citing Zeigenfuse v. Apex Asset Mgmt., L.L.C., 239
F.R.D. 400 (E.D. Pa. 2006), Smith v. NCO Fin. Sys.,
257 F.R.D. 429 (E.D. Pa. 2009), Boles v. Moss
Codilis, LLP, 2011 WL 4345289 ((W.D. Texas Sept. 15,
2011)). The Magistrate Judge correctly found, however, that
these cases are distinguishable, as they involved Rule 68
Offers of Judgments made to “pick-off” the named
plaintiff. Here, in contrast, Defendant's offer was made
to the entire putative class and thus does not give rise to
any conflict of interest between the named plaintiff and the
class as a whole. See McDowall, 216 F.R.D. at 51.
Plaintiff also notes that, had he accepted the Offer of
Judgment, the clerk of courts would have entered a judgment
“without judicial oversight, ” in contravention
of “Rule 23's mandates.” (Doc. 118 at 11-12).
However, the Magistrate Judge specifically addressed this
concern, stating that “an accepted Rule 68 offer of
judgment would be provisional and subject to Rule 23's
requirements.” (Doc. 116 at 3-4).
these reasons, the Court finds that Magistrate Judge Eddy did
not err in declining to strike Defendant's Offer of
Judgment, and Plaintiff's first objection is overruled.
Objection No. 2
alternative, Plaintiff objects to Magistrate Judge Eddy's
holding that Defendant's “offer of judgment served
a legitimate purpose because it was based on
[Defendant's] assessment of the value of the case.”
(Doc. 118 at 14). Plaintiff argues that “the
determinative question in this objection is whether
Plaintiff had sufficient information to
accept [Defendant]'s offer.” (Id.)
(emphasis in original). Accordingly, Plaintiff argues that
the Rule 68 Offer judgment should have been stricken because
he has not had the benefit of discovery regarding
Defendant's net worth, which is relevant to determining
the value of the case. (Id. at 15). Notably,
Plaintiff has cited no case law - and the Court is aware of
none - that holds that Rule 68 offers of judgment cannot be
made at the beginning of the discovery period. To the
contrary, as the Magistrate Judge found, the plain purpose of
Rule 68 is to encourage settlement and avoid costly
protracted litigation. (Doc. 116 at 4); see Marek v.
Chesny, 473 U.S. 1, 12-13 (1985) (“The purpose of
Rule 68 is to ‘facilitat[e] the early
resolution of marginal suits in which the defendant
perceives the claim to be without merit, and the plaintiff
recognizes its speculative nature.”) (emphasis added).
above reasons, the Court finds that Magistrate Judge
Eddy's Orders denying Plaintiff's Motion to Strike
the Rule 68 Offer of Judgment (Doc. 111) and denying
Plaintiff's Motion for Reconsideration (Doc. 116) were
neither clearly erroneous nor contrary to law. See
Fed. R. Civ. P. 72(a) (reciting standards of review governing
magistrate judges' non-dispositive rulings). ...